The Criminal Liability of a Guardian: Situations Constituting an Offence in the Guardianship Duty

The Concepts of Guardianship and Guardian

Guardianship (vesayet), regulated in Article 396 et seq. of the Turkish Civil Code No. 4721, is defined as a legal institution aimed at protecting the personal and property interests of minors not under parental custody and of adults who have been placed under restriction. A guardian (vasi), on the other hand, refers to the person obliged to protect all interests relating to the personality and property of the person under guardianship and to represent them in legal transactions (Article 403 of the Turkish Civil Code, TMK).

In Turkish law, the guardianship bodies consist of the guardianship offices together with guardians and trustees. The guardianship authority is the civil court of peace (sulh hukuk mahkemesi), and the supervisory authority is the civil court of first instance (asliye hukuk mahkemesi) (Article 397 TMK). The guardian is appointed by the civil court of peace and carries out the duty under the oversight of this authority. In Antalya as well, matters relating to guardianship are conducted through the civil courts of peace at the domicile of the candidate for restriction.

The institution of guardianship does not concern only Turkish citizens. In cities such as Antalya, where foreign residents live in large numbers, the appointment of a guardian by Turkish courts may also come onto the agenda for foreign nationals whose habitual residence is in Türkiye. In such a case, the duties, obligations and liabilities of the appointed guardian are subject in the same manner to the principles explained below.

The Duties and Obligations of a Guardian

In order to understand the limits of a guardian's criminal liability, the scope of their duties must first be known. The obligations of a guardian are regulated in Article 438 et seq. of the Turkish Civil Code and are gathered under three main headings.

Management of Property

When taking up their duty, the guardian, together with a person to be assigned by the guardianship authority, keeps an inventory of the ward's property (Article 438 TMK). Valuable securities, valuable items and important documents are placed in a safe location; the portion of cash not required for the ward's needs is deposited in a bank to earn interest (Article 441 TMK). The guardian must manage the ward's property carefully, like a good administrator.

Protection of the Personality and Representation

The guardian takes the necessary measures for the protection of the ward in matters relating to their personality; they show due care in matters of care, education and health. In addition, they represent the ward in all their legal transactions (Article 448 TMK). For certain important transactions the permission of the guardianship authority is required, and for others the permission of both the guardianship and the supervisory authorities is required (Articles 462–463 TMK); for example, the purchase and sale of immovable property is subject to the permission of the guardianship authority.

The Obligation to Render Account

The guardian must submit the account relating to the management to the guardianship authority at the periods determined by that authority — as a rule, once a year (Article 454 TMK). The obligation to render account is the fundamental safeguard enabling the supervision of the guardian's dispositions over the property; the breach of this obligation or the drawing up of accounts contrary to the truth is the most frequently encountered situation that opens the door to criminal liability.

The Difference Between Civil Liability and Criminal Liability

A guardian's liability arises on two separate planes. Civil liability is the obligation to compensate the damage caused to the ward by the guardian's faulty conduct while performing their duty, and it is regulated in Article 467 of the Turkish Civil Code. Criminal liability, on the other hand, is the type of liability that comes into play where the guardian's act corresponds to an offence type defined in the Turkish Penal Code, and which may result in imprisonment or a judicial fine.

The two types of liability are independent of each other: the conduct of a criminal investigation against the guardian does not prevent the compensation action; likewise, the fact that compensation has been paid does not eliminate criminal liability. The liability of the State for damages arising from the unlawful acts of persons serving in the guardianship offices is also separately regulated (Article 468 TMK).

The Guardian's Status as a Public Official and the Approach of the Court of Cassation

The most critical question in determining a guardian's criminal liability is whether the guardian is to be deemed a public official. Article 6/1-c of the Turkish Penal Code No. 5237 defines a public official as "a person who participates in the carrying out of a public activity by way of appointment or election or in any manner whatsoever, on a continuous, fixed-term or temporary basis." Guardianship is a public protective activity carried out by the State through its judicial organs, and the guardian participates in this activity by being appointed through a court decision.

Settled case-law of the Criminal General Assembly of the Court of Cassation and the 5th Criminal Chamber of the Court of Cassation (Yargıtay)

According to the established case-law of the Court of Cassation, a guardian, by reason of being appointed by the civil court of peace and carrying out their duty under the supervision of the guardianship authority, is a public official within the meaning of Article 6/1-c TCK. For this reason, the guardian's appropriation, for their own or another's benefit, of money or property belonging to the ward whose possession was transferred to the guardian by reason of their duty constitutes not the offence of breach of trust, but the offence of embezzlement.

The practical consequence of this characterisation is severe: the penalty for the offence of embezzlement is markedly higher than that for the offence of breach of trust, and the offence of embezzlement is not subject to complaint but is investigated ex officio.

The Principal Offences a Guardian May Commit

Since the guardian's sphere of duty covers property management together with the protection of the personality, the acts that may give rise to criminal liability may also arise in the form of offences against both property and the person.

Embezzlement (Article 247 TCK)

Embezzlement is defined as a public official's appropriation, to their own or another's account, of property whose possession has been transferred to them by reason of their duty, or which they are obliged to protect and oversee. A guardian's transferring the money in the ward's bank account to their own account, spending the rental income belonging to the ward for their own needs, or appropriating the sale price of the ward's immovable property is assessed within this scope. The penalty for the basic form of the offence is imprisonment from five to twelve years; where it is committed through fraudulent conduct aimed at preventing the embezzlement from coming to light, the penalty is increased by one half.

Breach of Trust (Article 155 TCK)

In cases where the guardian is not deemed a public official or the act does not fall within the scope of embezzlement, misappropriations of property entrusted within the framework of the authority to manage another's property may constitute the aggravated offence of breach of trust (Article 155/2 TCK). The penalty for this aggravated form is imprisonment from one to seven years and a judicial fine of up to three thousand days.

Misconduct in Office (Article 257 TCK)

Where the guardian, although not having the aim of appropriation, causes the victimisation or damage of the ward by acting contrary to the requirements of their duty, the offence of misconduct in office may come onto the agenda. Neglect or delay in performing the requirements of the duty — for example, failing to file within the time limit an action that should have been brought for the benefit of the ward, or missing peremptory (forfeiture) time limits — may be assessed under the second paragraph of the article as misconduct in office by way of omission.

Forgery of Documents (Article 204 TCK)

A guardian's creating records contrary to the truth in the account statements and reports submitted to the guardianship authority, or drawing up or using a false invoice or expenditure document, may constitute the offence of forgery of documents. Forgery in documents drawn up in the capacity of a public official and by reason of duty, as the aggravated form of forgery of official documents, requires imprisonment from three to eight years (Article 204/2 TCK).

Offences Against the Person

A guardian's liability is not limited only to property. Acts such as ill-treatment of the ward under the guardian's obligation of care and oversight (Article 232 TCK), the abandonment of a person unable to manage themselves (Article 97 TCK), or the failure to fulfil the duty of assistance (Article 98 TCK) may also give rise to a guardian's criminal liability.

The Process Followed Where Criminal Liability Arises

When the guardian's offence-constituting act is detected, two separate processes run in parallel: the administrative-judicial supervision process within guardianship law, and the criminal investigation.

Complaint to the Guardianship Authority and Removal from Duty

The person under guardianship who has the capacity of discernment, and any interested party, may lodge a complaint with the guardianship authority against the acts and transactions of the guardian (Article 461 TMK). Where the guardian grossly neglects their duty, abuses their powers, engages in trust-shaking conduct, or falls into insolvency in paying debts, the guardianship authority removes the guardian from duty (Article 483 TMK). Removal from duty is a measure that may be applied immediately for the protection of the person under guardianship, without awaiting the outcome of the criminal proceedings.

Criminal Investigation

The offences of embezzlement, forgery of official documents and misconduct in office are not subject to complaint; the Chief Public Prosecutor's Office initiates an investigation ex officio when it learns of the situation. The guardianship authority is obliged, if it detects a suspicion of an offence during supervision, to report the situation to the prosecutor's office. If sufficient suspicion arises as a result of the investigation, a public prosecution is brought, and the trial is heard, depending on the nature of the offence, before the criminal court of first instance or the aggravated criminal court; in the offence of embezzlement the competent court is the aggravated criminal court. Since the competent court is, as a rule, the court of the place where the offence was committed, in offences arising from a guardianship duty carried out in Antalya the trial is also held before the courts of that place.

The Compensation Process Running Alongside

Independently of the criminal proceedings, the ward or the newly appointed guardian may bring an action before the civil court for the compensation of the damages arising from the former guardian's faulty management. Special limitation periods are envisaged in compensation actions relating to a guardian's liability: as a rule, the action must be brought within one year from the notification of the final account (Article 492 TMK).

Situations Affecting Criminal Liability

A guardian's criminal liability is based on the principle of fault; without intent, the offences of embezzlement or breach of trust do not arise. Accordingly, losses of value in the property arising from a management error but not carrying an intent to appropriate, as a rule, give rise only to civil liability. Transactions carried out with the permission given by the guardianship authority benefit, provided they remain within the scope of the permission, from a presumption of conformity with the requirements of duty. In contrast, the fact that the permission was obtained by fraud or that the limits of the permission were exceeded does not eliminate liability.

In the offence of embezzlement, effective remorse is specially regulated: where the embezzled property is returned in kind or the damage is fully compensated before the investigation begins, the penalty is reduced by two thirds; where return and compensation occur before the prosecution begins, the reduction rate falls to one half, and where it occurs before judgment is given, to one third (Article 248 TCK).